Transcript LEGAL CHALLENEGES OF DIGITAL MILLENIUM

LEGAL CHALLENGES OF
DIGITAL MILLENIUM
A.Ram Kumar
Advocate
High Court of Andhra Pradesh
Intellectual Property Rights & Information Technology
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Challenges of Cyber space
• Relationship between law and tech has always been
uneasy
• Law had been slow and lethargic to respond to new
technologies
• Till recently the law makers handled problems
presented by technology with out break down of
legal resources
• Convergence of computers and internet posed a
much more grave problem
• Legal policy makers find it difficult to address.
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Borderless environment
• Cyberspace is borderless environment
• Invisibility of net users facilitates anonymity and
pseudonymity
• Intangible nature of the information
• All the above make it extremely difficult to apply
traditional legal concepts to cyberspace activity.
• Even in absence of specific legislation the common
law was being depended upon
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American Influence
• Internet basically product of US
• Issues relating to cyberspace greatly influenced by
US constitutional and legal issues
• Indian law is basically of British Origin and most of
the laws are very archaic
• Indian law makers need to evolve new laws.
Emphasis laid under the IT Act to make the Act
applicable to offences committed outside India
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Identification – Major Problem
• A person can express his views in anonymity
• Anonymity and pseudonymity causes problems of
identification
• Identification of offender is essential for imposing
liability
• Identification some times involves technology –
forensic or DNA
• Establishing offence becomes a major exercisenexus between equipment and offender
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Exercise of Jurisdiction
• Borderless nature of the cyberspace
challengers.
• Traditionally jurisdiction is linked with
territory
• Court to decide if it has personal jurisdiction
over the parties.
• Whether general jurisdiction or extra
territorial jurisdiction
• Different views expressed by courts on the
jurisdictional matter
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US Supreme Court
• Intl Shoe Co Vs Washinton
• “Ordinarily a non resident defendant may not be sued
in the forum unless it is first established that the
defendant has sufficient minimum contacts with the
forum and the maintenance of the suit does not offend
traditional notions of fair play and substantial justice”.
• If this test was met the court could exercise its
jurisdiction
• The convention on Jurisdiction and Foreign Judgments
in Civil and Commercial matters being negotiated under
the auspices of The Hague Conference on Private Intl
Law seeks to address the issue of multiplicity of
Jurisdiction
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Copy right issues
• Copyright law turned upside down
• Traditional legal doctrines on CR rendered out of
date
• 3 indelible way by which information is used and
exploited:
– Digitisation of information made reproduction
easy
– Networking has made distribution easy
– WWW made publication easy
• Three developments contributed for costs to be
shrunk to unimaginable level
• Economics of information value is affected
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Virtual property
• Virtual property is new kind of property spawned by
the net
• This virtual property capable of generating
astonishing wealth
• Information can be archived, compared,
manipulated and distributed at astonishing ease
• Data bases have acquired new value
• TM Rights and Domain names have new virtual
property in form of Cyber marks.
• Domain names runs the cyberspace and because of
the globalization and commercialization of net DN
are business identifiers
• Indian law has made a good head way in recognizing
DN as IP
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Knowledge Economy criminalisation
• Knowledge is third factor of production after capital
and labour
• Knowledge is used to create and exploit
• Crucial part in generating wealth
• Knowledge capitalism is the new trend of business
economy
• But in the race to achieve this law was left behind
• The pace of development of tech gave rise to on line
offenders and criminal
• Speed at which offence is committed is incredible
• Pace at which the crime is detected and solved is
slow
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New legal challenges
• The legal system as to be re engineered in so far as
digital and cyberspace offences are concerned
• Evidence gathering and law relating to evidenced to
undergo substantial change
• Searching and seizing of evidence calls for special
expertise
• Legal fraternity has to familiarise itself with
advanced evidence techniques like Forensic
science, digital foot printing etc
• Legal questions should be settled fast even with
judicial intervention
• The entire legal structure for Digital offences to be
set up
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Beginning made
• Courts have started with computerization,digitization
and Networking - at lower level
• Hosting of day to day judgments
• Virtual conferencing in criminal matters
• Enterprise Resource Planning and CRM packages to
help CJ’s to keep track of progress of litigation and
disposals
• Posting of cause lists, judgments, references to acts
etc
• By enacting IT Act, 2002, India has signaled to the
world that our country is ready to take up
challenges.
• Establishing Cyber Crime police stations to deal with
digital offences
Thank you
• Questions please
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